Pubdate: Tue, 07 May 2013 Source: San Diego Union Tribune (CA) Copyright: 2013 Union-Tribune Publishing Co. Contact: http://www.utsandiego.com/ Details: http://www.mapinc.org/media/386 Note: Seldom prints LTEs from outside it's circulation area. Author: Greg Moran COURT OKS BANS ON POT SHOPS State's Highest Court Rules That Local Governments Are Permitted to Outlaw Medical Marijuana Dispensaries A unanimous state Supreme Court ruled on Monday that local governments can outlaw medical marijuana dispensaries if they desire, rejecting arguments that the state's landmark medical marijuana law prohibited such bans. The ruling from the high court was not unexpected - the justices had telegraphed as much during oral arguments in the case several months ago - but it was still a setback for medical marijuana activists. Approximately 200 local governments around the state have passed some kind of law prohibiting medical marijuana sales and distribution, including several in San Diego County. The court's decision Monday won't change those rules and was welcomed by several cities. Oceanside has closed down eight or nine medical marijuana dispensaries and has a case pending in Vista Superior Court to close another, City Attorney John Mullen said. "It's kind of like playing whack-a-mole with them. One of them shuts down and another one opens up somewhere else," he said. "It would appear that this provides additional support for our arguments and will end the debate on banning medical marijuana dispensaries." Vista, San Marcos and Poway have also enacted bans. A spokeswoman for San Marcos said the ruling "is what we expected and hoped for." San Diego does not have an explicit ban on medical marijuana dispensaries but it also has no ordinances regulating them. A proposal by Mayor Bob Filner to allow dispensaries under city zoning laws was rejected last month by the City Council, which then ordered the city attorney to draft a different set of regulations that would allow the shops. In a statement on Monday, Filner said the court's ruling was a "disservice" to medical marijuana users, but "does not hinder our aim to provide regulated access to medical marijuana." San Diego has shut down more than 100 dispensaries over the past two years because city zoning laws don't allow them. On Monday, City Attorney Jan Goldsmith said the ruling "demonstrates that our office's interpretation of the law, which has been upheld by local Superior Court judges, is sound. If the City Council wants to allow dispensaries to locate in San Diego, they may do so. But, they are not required to do so." Medical marijuana advocates had argued that such bans conflicted with Proposition 215, which in 1996 allowed marijuana for medical use, and the Medical Marijuana Program law passed by the Legislature in 2004. They contended that the two state laws should take precedence over local laws. But the justices disagreed. The 44-page ruling affirmed law that allows local governments to regulate land use. The court also said that the two state laws allowing medical marijuana were narrow in scope and should not be broadly interpreted. The court has stated that principle in two previous rulings - one upholding the firing of an employee who used medical marijuana and tested positive at his work, and the second that narrowly defined who can be a "caregiver" under the law. The case dealt with a measure passed by the city of Riverside in 2010 that declared medical marijuana storefront shops a public nuisance and banned them under the city's zoning laws. The move was challenged by a medical marijuana outlet but was upheld by two lower courts. In the decision, Associate Justice Marvin Baxter said that Proposition 215 did no more than eliminate prosecution for medical marijuana use under certain circumstances. It did not, he wrote, "establish a comprehensive state system of legalized medical marijuana; or grant a right of convenient access to marijuana for medicinal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries." He added that the Legislature, if it wanted to, could pass laws addressing those areas. Advocates in Sacramento said that is what they are concentrating on now. One of the proposals being floated would require citywide bans to be put to a vote of the citizenry, along with a plan that leans heavily on so-called mitigation agreements. "If there are patients that want access in their community, there should be a process for the city, the business and the community to get together and figure out how that business can work in that community," said Steph Sherer, executive director of the medical marijuana advocacy group Americans for Safe Access, at a news conference in Sacramento. Steve DeAngelo, executive director of the state's largest dispensary, Harborside Health Center in Oakland, said mayors from some of the state's largest cities - including San Diego, San Francisco, Oakland and Berkeley - have written to Gov. Jerry Brown and lawmakers in recent weeks pleading for "meaningful regulations." "We hope that the Legislature will heed the calls of these mayors," DeAngelo said. Alex Kreit, a professor at the Thomas Jefferson School of Law and the former head of the San Diego medical marijuana task force, said the ruling does little to change the status quo. "My sense is that localities that wanted a ban have a ban in place," he said. He doubted the ruling will lead to a rush of new restrictions by cities and counties. The impact of the ruling might be to prod the Legislature into action, he said. "This case, more than anything, might be a signal to the Legislature that they need to take some action here," Kreit said. Staff writers Christopher Cadelago, Ray Huard, Allison Sampite-Montecalvo and Tawny McCray contributed to this report. - --- MAP posted-by: Jay Bergstrom